SACCO SOCIETIES ACT CHAPTER 490B LAWS OF KENYA

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1 LAWS OF KENYA SACCO SOCIETIES ACT CHAPTER 490B Revised Edition 2012 [2008] Published by the National Council for Law Reporting with the Authority of the Attorney-General

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3 [Rev. 2012] CAP. 490B CHAPTER 490B Section 1. Short title 2. Interpretation. 3. Application. SACCO SOCIETIES ACT ARRANGEMENT OF SECTIONS PART I PRELIMINARY PART II THE SACCO SOCIETIES REGULATORY AUTHORITY 4. Establishment of the Authority. 5. Objects and functions of the Authority. 6. Board of the Authority. 7. Powers of the Board. 8. Committees and delegation of powers. 9. Common seal of the Board. 10. Remuneration of the Board members. 11. Meetings and procedure of the Board. 12. Appointment and remuneration of the chief executive officer. 13. Appointment and remuneration of staff. 14. Protection from liability. 15. The Sacco societies levy. 16. The Authority s General Fund. 17. Investment of funds of the Authority. 18. Financial year. 19. Annual estimates. 20. Accounts and audit. 21. Submission and publication of annual reports. 22. Preparation, etc., of Sacco societies performance report. PART III LICENSING OF SACCO SOCIETIES 23. Carrying out of deposit-taking business. 24. Application for licence. 25. Issuance of licence. 26. Conditions of a licence. 27. Revocation of licence. 28. Publication of Sacco societies. PART IV GOVERNANCE OF SACCO SOCIETIES 29. Minimum capital requirements. 30. Minimum liquid assets. 31. Prohibited business. 32. Place of business. S1-3 [Issue 1]

4 CAP. 490B [Rev. 2012] Section 33. Application for loan or credit facility. 34. Limits on loans and credit facility. 35. Insider lending. 36. Charge against shares and savings deposits. 37. Dormant accounts. 38. Investments by Sacco societies. 39. Financial year. 40. Form of accounts. 41. Submission of accounts to the Authority. 42. Disclosure requirements. 43. Appointment of internal auditor. 44. Appointment of external auditors. 45. Qualifications of external auditors. 46. Display and publication of audited financial statements. 47. Annual general meeting to be the supreme organ. PART V REGULATION AND SUPERVISION OF SACCO SOCIETIES 48. Regulation and supervision of Sacco societies. 49. Powers of the Authority to inspect. 50. Powers of the Authority to advise and direct. 51. Supervisory enforcement actions. 52. Powers of the Authority to intervene in management. 53. Collection and furnishing of information to the Authority, etc. 54. Publication and sharing information. PART VI THE DEPOSIT GUARANTEE FUND 55. Establishment of the Deposit Guarantee Fund. 56. The Board of Trustees. 57. Remuneration, etc., and conduct of affairs of Board of Trustees. 58. Sources of the Deposit Guarantee Fund. 59. Protection of deposits. 60. Contribution to the Deposit Guarantee Fund. 61. Annual report. PART VII MISCELLANEOUS 62. Declaration of holidays. 63. Orders by the High Court. 64. Default by officers. 65. Miscellaneous offences. 66. General penalty. 67. Application of the Co-operative Societies Act, Regulations. 69. Transitional provisions. 70. Amendment of section 44 of Act No. 12 of [Issue 1] S1-4

5 [Rev. 2012] CAP. 490B Section 71. Amendment of section 76 of Act No. 12 of Repeal of section 91A of Act No. 12 of SCHEDULE CONDUCT OF THE AFFAIRS OF THE BOARD S1-5 [Issue 1]

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7 [Rev. 2012] CAP. 490B CHAPTER 490B SACCO SOCIETIES ACT [Date of assent: 24th December, 2008.] [Date of commencement: 26th September, 2009.] An Act of Parliament to make provision for the licensing, regulation, supervision and promotion of Sacco societies, to establish the Sacco Societies Regulatory Authority and for connected purposes 1. Short title [Act No. 14 of 2008, L.N. 153/2009.] PART I PRELIMINARY This Act may be cited as the Act. 2. Interpretation In this Act, unless the context otherwise requires associate means in relation to a company or other body corporate (i) its non-operating holding company or its subsidiary; (ii) a subsidiary of its non-operating holding company; (iii) a holding company of its subsidiary; (iv) any person who controls the company or body corporate whether alone or with his associates or with other associates of it; in relation to an individual (i) any member of his family; (ii) any company or other body corporate controlled, directly or indirectly, by him whether alone or with his associates; and a person shall be deemed to be a member of a family if he is the parent, spouse, brother, sister, child, uncle, aunt, nephew, niece, stepfather, stepmother, stepchild and adopted child of the person concerned, and in case of an adopted child his adopter or adopters; Board means the Board of the Authority constituted under section 6; board of directors has the meaning assigned thereto in the Co-operative Societies Act (Cap. 490); Board of Trustees means the board of trustees established by section 56 of this Act; S1-7 [Issue 1]

8 CAP. 490B [Rev. 2012] by-laws has the meaning assigned thereto in the Co-operative Societies Act, 1997 (Cap. 491); Central Bank means the Central Bank of Kenya established by the Central Bank of Kenya Act; chief executive officer means the chief executive officer of the Authority; Commissioner has the meaning assigned thereto in the Co-operative Societies Act (Cap. 490); control in relation to the term associate includes (i) ability to influence, whether directly or indirectly, the composition of the board of directors of a deposit-taking Sacco society; or (ii) holding, directly or indirectly, whether personally or through a holding company or subsidiaries thereof, or in any other way, an aggregate of twenty five per centum or more of the voting power of a company or body corporate, whether alone or with associates or of the body corporate; co-operative society has the meaning assigned to it in the Co-operative Societies Act (Cap. 490); core capital means the fully paid up members shares, capital issued, disclosed reserves, retained earnings, grants and donations all of which are not meant to be expended unless on liquidation of the Sacco society; deposit means a sum of money received or paid on terms under which it shall be repaid, with or without interest or premium, and either on demand or at a time or in circumstances agreed by or on behalf of the person making the payment and the person receiving it; Deposit Guarantee Fund means the Deposit Guarantee Fund established by section 55; deposit-taking business means a Sacco business in which the person conducting the business holds himself out as accepting deposits on a day-to-day basis; and any other activity of the Sacco business which is financed, wholly or to a material extent, by lending or extending credit for the account and at the risk of the person accepting the deposit, including the provision of short-term loans to members; director has the meaning assigned to it in the Co-operative Societies Act (Cap. 490); dormant account means savings or current account maintained by a Sacco society which is not operational, or has had no transaction by the depositor within the maximum period prescribed; General Fund means the fund established by section 16; international financial reporting standards means the international accounting standards set by the International Accounting Standards Board; [Issue 1] S1-8

9 [Rev. 2012] CAP. 490B land includes freehold and leasehold land in Kenya and all buildings and permanent improvements and premises thereon; levy means the levy imposed under section 15 licence means a licence granted under section 25; member has the meaning assigned to it in the Co-operative Societies Act (Cap. 490); Minister means the Minister for the time being responsible for matters relating to Sacco societies; non-deposit taking business means Sacco business, other than deposit-taking business; officer in relation to a Sacco society, means a director or any other person, by whatever name or title he may be called or described, who carries out or is empowered to carry out functions relating to the overall direction in Kenya of that deposit-taking Sacco society or takes part in the general management thereof in Kenya; place of business means a Sacco society s head office, branch, or outlet, including a mobile unit, marketing office, automated teller machines or agency of a Sacco society and which is open to the public; Sacco business means financial intermediation and any other activity by a Sacco society based on co-operative principles and in accordance with this Act, by way of receipt of withdrawable deposits, domestic money transfer services, loans, advances and credit facilities; or receipt of non-withdrawable deposits from members and which deposits are not available for withdrawal for the duration of the membership of a member in a Sacco society and may be used as collateral against borrowings and domestic money transfer services; Sacco society means a savings and credit co-operative society registered under the Co-operative Societies Act (Cap. 490); share capital means members equity in the form of issued and fully paid up shares of common stock; total capital means the total sum of core capital and supplementary capital of a Sacco society; total deposit liabilities means the total deposits in Kenya in any Sacco society which are repayable on demand or after a fixed period or after notice under agreed terms and conditions; Tribunal has the meaning assigned to it in the Co-operative Societies Act (Cap. 490); trustees means the trustees of the board of trustees of the Deposit Guarantee Fund constituted under section 57. S1-9 [Issue 1]

10 CAP. 490B [Rev. 2012] 3. Application (1) This Act shall apply to every deposit-taking business; specified non-deposit taking business, in the manner specified in subsection (2). (2) For the purposes of subsection (1), the Minister may make regulations specifying the non-deposit taking business to which that subsection applies; and prescribing measures for the conduct of the specified business. PART II THE SACCO SOCIETIES REGULATORY AUTHORITY 4. Establishment of the Authority (1) There is established an Authority to be known as the Regulatory Authority. (2) The Authority shall be a body corporate with perpetual succession and a common seal and shall be capable, in its corporate name, of (d) (e) suing and being sued; taking, purchasing or otherwise acquiring, holding, charging, and disposing of both movable and immovable property; borrowing or lending money; entering into contracts; and doing or performing all such other things or acts necessary for the furtherance of the provisions of this Act. 5. Objects and functions of the Authority The objects and functions of the Authority shall be to (d) (e) (f) license Sacco societies to carry out deposit-taking business in accordance with this Act; regulate and supervise Sacco societies; hold, manage and apply the General Fund of the Authority in accordance with the provisions of this Act; levy contributions in accordance with this Act; do all such other things as may be lawfully directed by the Minister; and perform such other functions as are conferred on it by this Act or by any other written law. 6. Board of the Authority (1) The oversight function and management of the Authority shall vest in a Board of the Authority which shall comprise the chairman to be appointed by the Minister from amongst the members appointed under paragraph (e); [Issue 1] S1-10

11 [Rev. 2012] CAP. 490B (d) (e) the Permanent Secretary to the Treasury or his representative; the Commissioner or his representative; the Governor of the Central Bank or his representative; four members, not being public officers, appointed by the Minister by virtue of their knowledge, and possession of a minimum of ten years experience, in co-operative practice and management, law, finance or economics; and (f) the chief executive officer appointed under section 12. (2) A member of the Board appointed under subsection (1)(e) shall hold office for a term of three years and shall be eligible for re-appointment for one more term of up to three years. (3) The members of the Board appointed under subsection (1)(e) shall be appointed at different times so that the respective expiry dates of their terms shall fall at different times. (4) A person shall not be qualified for appointment as a member of the Board, if that person is (d) a member of the National Assembly or of a local authority; a director or employee of a Sacco society or of a co-operative society; auditor of a Sacco society or of a co-operative society; and a person who is prohibited from being a director or to take part in the management of a cooperative or financial institution by the Commissioner under the Co-operative Societies Act (Cap. 490) or by the Central Bank of Kenya respectively. (5) A member of the Board appointed under subsection (1)(e) may be removed from office by the Minister, if that member (d) accepts any office the holding of which, if he were not a member of the Board, would make him ineligible for appointment to the office of a member of the Board; fails to discharge the functions of his office whether arising from infirmity of body or mind or any other cause; conducts himself in a manner not befitting a member of the Board; and becomes subject to any disqualification set out in subsection (4)(d). (6) A member of the Board appointed under subsection (1)(e) may resign office by giving a fourteen days notice to the Minister. 7. Powers of the Board The Board shall have all the powers necessary for the performance of its functions under this Act and, in particular, shall have the power to supervise, control and administer the assets of the Authority in such manner and for such purposes as would best promote the objects and functions for which the Authority is established; S1-11 [Issue 1]

12 CAP. 490B [Rev. 2012] (d) (e) (f) (g) open and operate bank accounts; determine provisions to be made for the Authority s capital and recurrent expenditure and for the reserves of the Authority; award contracts; enter into association with other bodies or organizations within or outside Kenya as the Board may consider desirable or appropriate and in furtherance of the purpose for which the Authority is established; invest funds of the Authority not currently required for its purpose in the manner provided in section 19; and receive grants or donations and make legitimate disbursements therefrom for the furtherance of the objects and functions for which the Authority is established. 8. Committees and delegation of powers (1) The Board may appoint committees from among its own members or otherwise, to carry out such general or special functions as may be specified by the Board. (2) The Board may, by resolution, either generally or in any particular case, delegate to any committee of the Board or to any member, officer, employee, or agent of the Authority, the exercise of any of the powers or the performance of any of the functions or duties of the Authority under this Act or under any other written law. (3) Except for purposes of the performance of his duties or the exercise of his powers under this Act, or where required under any other law to do so, any officer or any other employee or agent of the Authority shall not disclose any information which he has acquired in the course of the performance of his duties or the exercise of his powers in accordance with this Act. (4) Any person who contravenes subsection (3) commits an offence and is liable on conviction to a fine not exceeding one hundred thousand shillings, or to imprisonment for a term not exceeding one year, or to both such fine and imprisonment. 9. Common seal of the Board (1) The common seal of the Authority shall be kept in such custody as the Board may direct and shall not be used except on the order of the Board. (2) The common seal of the Authority when affixed to a document and duly authenticated shall be judicially and officially noticed and unless and until the contrary is proved, any necessary order or authorization by the Board under this section shall be presumed to have been duly given. (3) The common seal of the Authority shall be authenticated by the signature of the chief executive officer and the chairperson of the Board or any one other officer authorized by the Board in that behalf. (4) All documents, other than those required by law to be under seal, made by, and all decisions of, the Authority may be signified under the hand of the [Issue 1] S1-12

13 [Rev. 2012] CAP. 490B chairperson, in the case of a decision taken at a meeting at which the chairperson is not present, under the hand of the person presiding at such meeting. 10. Remuneration of the Board members The Authority, in consultation with the Minister, shall pay members of the Board such remuneration or allowances for their services and expenses as it may determine. 11. Meetings and procedure of the Board The conduct of the business of the Board shall be as provided in the Schedule, but subject thereto, the Board may regulate its own procedure. 12. Appointment and remuneration of the chief executive officer (1) There shall be a chief executive officer who shall be appointed by the Board, in consultation with the Minister, and whose terms and conditions of service shall be determined by the Board in the instrument of appointment or otherwise in writing from time to time. (2) No person shall be appointed as the chief executive officer of the Authority unless he has at least ten years experience in financial management, co-operative practice and management, law, finance or economics. (3) The chief executive officer shall be an ex officio member of the Board but shall have no right to vote at any meeting of the Board. (4) The term of office of the chief executive officer shall be four years but may be renewed for one more term of not more than four years. (5) The chief executive officer shall, subject to the general policy set by the Board, be responsible for the operations and management of the day-to-day affairs of the Authority. (6) In the event of the chief executive officer being absent or being incapacitated by reason of sickness or other cause, the Board may with the approval of the Minister, appoint a person to act as the chief executive officer during the period of that absence or incapacitation. (7) The Board with the approval of the Minister may remove the chief executive officer if, for any reason, the chief executive has become incapable of properly performing the functions of his office or is incompetent. 13. Appointment and remuneration of staff (1) The Board may appoint such other officers and employees as it considers necessary for the efficient discharge of its duties and responsibilities. (2) The officers and employees appointed under subsection (1) shall be remunerated in such manner and at such rates, and shall be subject to such conditions of service, as may be determined by the Board. (3) Every officer or employee appointed under subsection (1) shall, subject to this Act, exercise such powers and functions and perform the duties and responsibilities assigned to him from time to time by the chief executive officer. S1-13 [Issue 1]

14 CAP. 490B [Rev. 2012] 14. Protection from liability (1) No matter or thing done by an officer or an employee of the Authority shall, if the matter or thing is done bona fide for executing the functions, powers or duties of the Authority, render the officer or employee so acting, personally liable for any action, claim or demand. (2) Subsection (1) shall not relieve the Authority from liability to pay compensation or damages to any person for any injury to that person, or other loss caused by the exercise of any power conferred by this Act or any other written law or by the failure of any works of the Authority. 15. The Sacco societies levy (1) The Authority may by order published in the Gazette, impose a levy to be known as the Sacco societies levy on the deposits held in deposit-taking Sacco societies, or on such other base as the Authority may determine in the case of Sacco societies carrying out non-deposit taking business specified under section 3(2). (2) A levy imposed under this section shall be payable at such rate as may be specified in the order. (3) An order under this section may contain provisions as to the time at which the amount payable by way of the levy shall become due. (4) All moneys received in respect of the levy shall be paid into the General Fund. (5) If a person fails to pay any amount payable by him by way of the levy on or before the date prescribed by the order under subsection (1), a sum equal to five per centum of the amount shall be added to the amount due for each month or part thereof during which the amount due remains unpaid. (6) If any moneys required to be paid within the time prescribed under subsection (3) is not paid on or before the date prescribed by the order, the amount due and any sum payable under subsection (5) shall be a civil debt recoverable summarily by the Authority. 16. The Authority s General Fund (1) There is established a fund of the Authority to be known as the General Fund of the Authority which shall vest in the Authority. (2) There shall be paid into the General Fund (d) (e) all proceeds of the levy; such moneys or assets as may accrue to or vest in the Authority in the course of the exercise of its powers or the performance of its functions under this Act; such sums as may be payable to the Authority pursuant to this Act or any other written law; such sums as may be granted to the Authority pursuant to subsection (3); and all moneys from any other source provided for or donated or lent to the Authority. [Issue 1] S1-14

15 [Rev. 2012] CAP. 490B (3) There shall be made to the Authority out of moneys provided by Parliament for that purpose, grants towards the expenditure incurred by the Board in the exercise of its powers of the performance of its functions under this Act. (4) There shall be paid out of the General Fund such sums of money required to defray the expenditure of the Authority incurred by the authority in the discharge of its functions under this Act. 17. Investment of funds of the Authority (1) The Authority may invest its funds in any securities which for the time being are authorized for trust funds or in any other securities which the Minister may from time to time, approve. (2) The Authority may place on deposits with such bank or banks as it may determine, any moneys not immediately required for the purposes of the Authority. 18. Financial year The financial year of the Authority shall be the period of twelve months ending on the thirtieth of June in each year. 19. Annual estimates (1) The Authority shall, at least three months before the commencement of the financial year, prepare estimates of revenue and expenditure for that year. (2) The estimates prepared under subsection (1) shall include provision for (d) (e) (f) salaries, allowances and other charges in respect of the officers and staff of the Authority; pensions, gratuities and other charges in respect of the retirement benefits which are payable out of the funds of the Authority; the maintenance, repair and replacement of the assets of the Authority; funds to meet future or contingent liabilities; authorized payments to members of the Board; and any other matter that the Authority may, with the approval of the Ministers deem appropriate. (3) The estimates prepared under this section shall be submitted by the Authority to the Minister for approval before the start of the financial year. 20. Accounts and audit (1) The Authority shall cause to be kept proper books and records of accounts of the income, expenditure, assets and liabilities of the Authority. (2) The Authority shall within three months of the closure of the financial year submit to the Controller and Auditor-General a statement of income and expenditure during that period; a statement of the assets and liabilities of the Authority on the last day of that year. S1-15 [Issue 1]

16 CAP. 490B [Rev. 2012] (3) The accounts of the Authority shall be audited and reported upon in accordance with the Public Audit Act (Cap. 412B). 21. Submission and publication of annual reports (1) The Authority shall within four months of the closure of the financial year, submit to the Minister a report on the operations of the Authority during that year. (2) The Authority shall, after submission of the report to the Minister under subsection (1), publish the report in the Gazette and in at least one newspaper of national circulation. 22. Preparation, etc., of Sacco societies performance report The Authority shall within four months of the closure of the financial year prepare and submit to the Minister a report on the operations and performance of the Sacco societies under this Act during that year. PART III LICENSING OF SACCO SOCIETIES 23. Carrying out of deposit-taking business (1) No person shall carry out deposit-taking business within the meaning of this Act, unless such person is a Sacco society registered under the Co-operative Societies Act, (Cap. 490); and holds a valid licence issued under this Act. (2) A person who contravenes the provisions of this section commits an offence and shall be liable, on conviction, to a fine not exceeding five hundred thousand shillings, or to imprisonment for a term not exceeding three years, or to both such fine and imprisonment. 24. Application for licence (1) A Sacco society intending to transact the deposit-taking business in Kenya shall, before commencing such business, apply in writing, to the Authority for a licence, in the prescribed form. (2) An application under subsection (1) shall be accompanied by (d) (e) a copy of the certificate of registration and the by-laws of the Sacco society; evidence that the Sacco society meets the minimum capital requirements prescribed in the Second Schedule; information relating to the place of business, indicating that of the head office, and branches, if any; the prescribed fees; a report by the Sacco society, covering the following (i) (ii) (iii) objectives of the deposit-taking Sacco society business; membership and share capital; economic and financial environment; [Issue 1] S1-16

17 [Rev. 2012] CAP. 490B (f) (iv) (v) organisational structure and management; and financial and risk analysis; such other requirements as the Authority may prescribe. (3) A Sacco society may appeal to the Minister in reference to refusal to grant a licence within thirty days after receipt of notification of refusal. (4) The Minister may reverse the decision of the Authority only if (d) the Authority failed to follow required procedures in making its decision; the Authority s decision was contrary to the Act and the regulations; there was no factual basis for the Authority s decision; or based on a review of the record the Authority committed a manifest error in its assessment of facts, or abused its discretion in taking its decision. (5) The Authority shall, in consultation with the Minister make regulations providing for further requirements to be fulfilled before the grant of licence to a Sacco society. 25. Issuance of licence (1) The Authority shall consider every application made under section 24 and may, if satisfied that the applicant meets the requirements of this Act, grant a licence to the applicant upon payment of the prescribed fee. (2) The Authority shall upon the payment by the applicant of the prescribed fee, issue a licence to a Sacco society to carry out deposit-taking Sacco society business. (3) The licence referred to in subsection (2) shall, where the other requirements of this section are fulfilled, be issued within fourteen days from the date of payment of the prescribed fee. (4) Every Sacco society shall be required to pay an annual licence fee of such amount and within such time as may be prescribed by the Authority. (5) A Sacco society which fails to pay the annual fee by the date on which such payment is due shall in addition to any action by the Authority under section 27 be liable to pay such penalty as the Authority may prescribe. (6) A Sacco society which fails to commence deposit-taking Sacco business within twelve months of the grant of a licence under this Act shall, if it still proposes to operate such business, make fresh application under section 24. (7) The Authority may grant or refuse an application made under subsection (6) and its decision shall be final. 26. Conditions of a licence (1) The Authority shall endorse on a licence granted under this Act such conditions as it considers necessary and may from time to time add, vary or substitute such conditions as it deems appropriate. S1-17 [Issue 1]

18 CAP. 490B [Rev. 2012] (2) Where it appears to the Authority that there are reasonable grounds for the revocation of a licence, but that the circumstances are such as that the revocation would not be expedient or would be unjust to the members, the Authority may restrict the licence in accordance with subsection (3). (3) A licence may be restricted by imposing a limit on the duration of the licence for a period, not exceeding one year; or such additional conditions for the protection of depositors as the Authority may deem necessary. 27. Revocation of licence (1) The Authority may, by notice in writing to a Sacco society, revoke the licence if the Sacco society ceases to carry on deposit-taking business in Kenya or goes into liquidation or is wound up or is otherwise dissolved or deregistered under the Co-operative Societies Act (Cap. 490); fails to comply with this Act, or any rules, regulations, orders or directions issued under the Act or any condition of the licence; fails to pay the annual licence fee as required under section 25(3); (d) (e) does not hold at least fifty percent of the capital requirements prescribed in section 30 and the Second Schedule; or has knowingly engaged in serious criminal or fraudulent acts that are likely to cause insolvency, substantial dissipation of assets or earnings or may otherwise weaken the deposit-taking Sacco society s condition or seriously prejudice the interests of the deposit-taking Sacco society s members. (2) The Authority shall, before revoking a licence, give to the Sacco society not less than fourteen days notice in writing of its intention, and shall consider any representations made to it in writing by the Sacco society within that period before revoking the licence. (3) The Authority shall cause the name of every Sacco society whose licence is revoked under this section to be published forthwith in the Gazette and at least one newspaper of national circulation. (4) Where the licence of a Sacco society is revoked or cancelled, the Sacco society shall not be entitled to any refund of the licence fee in respect of any unexpired period of the licence. (5) An aggrieved Sacco society may appeal to the Minister in respect of a revocation of its licence within thirty days after being notified of the revocation. (6) An appeal shall not have the effect of suspending the actions of the Authority while the appeal is being pursued. (7) The Tribunal may reverse the decision of the Authority only if the Authority failed to follow required procedures in making its decision; the Authority s decision was contrary to this Act and the regulations; [Issue 1] S1-18

19 [Rev. 2012] CAP. 490B (d) there was no factual basis for the Authority s decision; or based on a review of the record, the Authority committed a manifest error in its assessment of facts, or abused its discretion in taking its decision. 28. Publication of Sacco societies The Authority shall cause the list of all Sacco societies to be published once every year in the Gazette and at least in one newspaper of national circulation. PART IV GOVERNANCE OF SACCO SOCIETIES 29. Minimum capital requirements All Sacco societies shall comply with and maintain at all times the minimum capital requirements as may be prescribed by the Authority. 30. Minimum liquid assets (1) A Sacco society shall maintain such minimum holding of liquid assets of its members deposits and borrowings as may be prescribed by the Authority. (2) Every Sacco society shall calculate the average monthly balance of its deposits and borrowings at the close of business on such day as may be prescribed by the Authority. (3) A Sacco society which does not comply with the requirements of subsection (1), within such period as the Authority may prescribe, shall be liable to pay, on being called upon to do so by the Authority, a penalty interest charge not exceeding one percent of the amount of the deficiency, for every day during which the offence continues. 31. Prohibited business A Sacco society shall engage only in such business as the Authority shall prescribe. 32. Place of business (1) No Sacco society may open in Kenya a branch or a new place of business or change the location of a branch or the existing place of business in Kenya without the approval of the Authority. (2) A person who contravenes the provisions of this section commits an offence and shall be liable, on conviction, to a fine not exceeding one hundred thousand shillings, or to imprisonment for a term not exceeding three years, or to both such fine and imprisonment. 33. Application for loan or credit facility (1) Any member of a Sacco society may apply to the Sacco society for a loan or credit facility in writing. (2) A person who applies for a loan or credit facility under subsection (1) shall provide evidence of his or her ability to repay the loan or credit facility. S1-19 [Issue 1]

20 CAP. 490B [Rev. 2012] (3) Every Sacco society shall prescribe in writing a loans policy and procedures manual specifying the criteria and procedures applicable in the evaluation, processing, approval, documentation and release of loans or credit facilities; an asset review system, which shall accurately identify risk and assure the adequacy of the provisions for losses account; a system of reviewing the entire asset portfolio including contingent accounts or off balance sheet items and adequate provisioning for losses at periodic monthly intervals. (4) Where security is required with respect to a loan, the Sacco society may accept as security against any loan, an endorsement by a guarantor or coguarantor, assignment of an interest in real or personal property, deposits or wages of the borrower or any collateral as may be prescribed by the Authority. (5) No Sacco society shall grant a loan or credit facility to a person who is not a member of that society. 34. Limits on loans and credit facility (1) No Sacco society shall grant a loan or credit facility to a member where the loan or credit facility, in the aggregate, exceeds such limit of the society s core capital as the Authority may prescribe. (2) No Sacco society shall grant a loan or credit facility against the security of the core capital of the society. (3) Any person who contravenes the provisions of this section commits an offence and shall be liable, on conviction, to a fine not exceeding one hundred thousand shillings, or to imprisonment for a term not exceeding two years, or to both such fine and imprisonment. 35. Insider lending (1) A Sacco society may make loans to its employees and members of its board of directors. (2) The conditions for the grant of a loan or credit facility to an employee or board member shall comply with all requirements under this Act with respect to loans to other members and shall not be made on terms more favourable than those extended to other members. (3) A person who has applied for a loan or credit facility to which this section applies shall not be present nor participate in the consideration of the application. (4) No director, officer, employee or a member of the board of a Sacco society shall act as a guarantor of any person with respect to a loan advanced or credit facility granted to a person by that society. (5) A Sacco society may lend to its staff and officials an amount in the aggregate not exceeding such proportion of its total assets as prescribed by the Authority. [Issue 1] S1-20

21 [Rev. 2012] CAP. 490B 36. Charge against shares and savings deposits (1) A Sacco society shall have a first charge against deposits and share capital and upon any dividend or interest payable to a member for any debt due to the society from the member, either as a guarantor or endorser of a loan or credit facility or for any other obligation. (2) A Sacco society may refuse to allow withdrawals from any deposit account operated by a member where the member is in arrears on a debt owed to the society. 37. Dormant accounts The treatment of members dormant accounts shall be in such manner as may be prescribed by the Authority. 38. Investments by Sacco societies (1) The funds of a Sacco society may be invested in securities, obligations or other debt instruments issued or guaranteed by the government or any agency of the government; deposits, obligations or other accounts of deposit-taking institutions under the Banking Act (Cap. 488); shares, stocks, deposits in, loans to or other obligations of any Sacco society or co-operative society. (2) An investment made under this section shall not in the aggregate, exceed such proportion of the total core capital and deposits of a Sacco society as the Authority may prescribe. (3) A Sacco society shall not purchase or acquire any land or any interest or right therein except as may be reasonably necessary for the purpose of conducting its deposit-taking business and where such investments do not exceed such proportion of the total assets of the society as the Authority may prescribe. 39. Financial year The financial year of a Sacco society shall be the period of twelve months ending the thirty-first December in each year. 40. Form of accounts (1) Every Sacco society shall keep proper books of accounts. (2) Every Sacco society shall keep accounts and records which show a true and fair state of affairs; and explain all transactions and financial position to enable the Authority to determine whether the Sacco society has complied with the provisions of this Act and the regulations made under this Act. (3) The accounts and other financial records of a Sacco society shall be denominated in Kenya shillings and shall comply with the international financial reporting standards and such other requirements as the Authority may prescribe. S1-21 [Issue 1]

22 CAP. 490B [Rev. 2012] (4) The board of directors shall cause the accounts of the Sacco society to be audited within three months after the close of each financial year. 41. Submission of accounts to the Authority (1) A Sacco society shall, not later than three months after the end of each financial year, submit to the Authority, in the prescribed format an audited balance sheet, showing its assets and liabilities; an audited profit and loss account; and a copy of the auditor s report. (2) A person who contravenes the provisions of this section commits an offence. 42. Disclosure requirements The disclosures in the financial statements of a Sacco society shall include disclosures on members, if any, who hold more than twenty percent of the share capital and deposits in the Sacco society; any advances or credit facilities exceeding such limits of its core capital as may be prescribed by the Authority; and any lending to insiders. 43. Appointment of internal auditor (1) Every Sacco society shall appoint an internal auditor who shall report to the board of directors on the internal control systems and financial matters of the society. (2) No person shall be appointed as an internal auditor under this section unless the person holds such professional qualifications in accounting and has such experience in deposit-taking business, as may be prescribed by the Authority. 44. Appointment of external auditors (1) Every Sacco society shall, in each financial year, have an external auditor who shall be a person qualified under section 45; approved by the annual general meeting of that society; and appointed as such by the Authority. (2) A Sacco society shall not remove or change its external auditors in the course of the year of the appointment of such auditors except with the prior approval of the Authority. (3) An external auditor shall, not less than four months after the end of each financial year, submit his report to the Authority, on the financial conditions of the deposit-taking business of the Sacco society for which he has been appointed. [Issue 1] S1-22

23 [Rev. 2012] CAP. 490B (4) An external auditor s report submitted under subsection (3) shall contain information on the solvency of the Sacco society s business and any concerns with respect to the financial condition of the society s business; any violation of prudential standards or a condition of the licence; and any other contravention of this Act. (5) Where for any reason a casual vacancy occurs in the appointment of the external auditor in the course of the year of that appointment, the board of directors of the Sacco society shall, with the approval of the Authority and subject to subsection (1), appoint another external auditor. 45. Qualifications of external auditors A person shall be qualified for appointment as an external auditor of a Sacco society if that person is qualified as an auditor under the Companies Act (Cap. 486); is among the list of auditors approved and duly registered by the Authority; and is not (i) (ii) (iii) (iv) (v) (vi) an officer of a Sacco society; a partner of a director of a Sacco society; an employer or employee of an officer of a Sacco society; an officer or employee of an associate of a Sacco society; a partner or an employer of a person who regularly performs the duties of secretary or book-keeper for a Sacco society; or a firm or member of a firm of auditors of which any partner or employee falls within the categories enumerated in this section. 46. Display and publication of audited financial statements (1) A Sacco society shall display, throughout the year, in a conspicuous position in every place of business, a copy of its last audited financial statements in the prescribed format. (2) A Sacco society which does not comply with the provisions of this section shall be liable to pay to the Authority such penalty, not being less than one hundred thousand shillings, as may be prescribed by the Authority. 47. Annual general meeting to be supreme organ The annual general meeting of a co-operative society as established under the Co-operatives Societies Act (Cap. 490) shall be the supreme organ of a Sacco society. PART V REGULATION AND SUPERVISION OF SACCO SOCIETIES 48. Regulation and supervision of Sacco societies (1) The Authority shall be responsible for the regulation and supervision of Sacco societies to which this Act applies. S1-23 [Issue 1]

24 CAP. 490B [Rev. 2012] (2) Without prejudice to the generality of subsection (1), the Authority shall (d) (e) prescribe prudential standards to be adhered to by Sacco societies; undertake inspections or require a Sacco society to submit information and reports on its financial affairs of the deposit-taking business to enable the Authority to evaluate the society s financial condition; require or oversee Sacco societies workout plan to avert or alleviate financial difficulties; prescribe the maximum number of years an external auditor may serve the same Sacco society; exercise such incidental powers as may be necessary or requisite to enable it to effectively carry out its functions under this Act. 49. Powers of the Authority to inspect (1) The Authority may, at any time and from time to time, and shall, if so directed by the Minister, cause an inspection to be made by any person authorized by the Authority in writing of any Sacco society and of its books, accounts and records. (2) The Authority shall assist any investigative authority regarding matters of suspected fraud or malpractice in Sacco societies either by identification of such matters for referral or at the request of such authority. (3) Where an inspection is made under subsection (1), the society concerned and every officer or employee thereof shall produce and make available to the person making the inspection, all books, accounts, records and other documents of the Sacco society and such correspondence, statements and information relating to the society as the person making the inspection may require, and within such period as he may direct in writing. (4) A person who fails to produce any books, accounts, records, documents, correspondence, statements or the information required under subsection (2), within the period specified in the relevant direction, commits an offence. (5) The person making the inspection shall prepare and submit a report to the Authority, and the report shall state (d) any breach or contravention of any of the provisions of this Act or any regulations made under this Act; any irregularity in the manner of conduct of the inspected society; any mismanagement of a Sacco society; and any other matter relating to a Sacco society not consistent with sound and prudent business practice. (6) A copy of the report of the findings of an inspection under subsection (1) shall be submitted by the Authority to the Commissioner. (7) A report of the findings of an inspection under subsection (1) shall, in addition to any action that may be taken under the Co-operative Societies Act, (Cap. 490) be presented by the Authority to the board of directors of the Sacco society. [Issue 1] S1-24

25 [Rev. 2012] CAP. 490B 50. Powers of the Authority to advise and direct (1) If, at any time, the Authority has reason to believe that the business of a Sacco society is being conducted in a manner contrary to or not in compliance with the requirements of this Act or of any regulations made thereunder or in any manner detrimental to or not in the best interest of its members or members of the public; or a Sacco society, any of its officers or any other person participating in the management of the society is engaged in any practice likely to occasion a contravention of any of the provisions of this Act or any regulations made thereunder, or any other Act, the Authority may (i) (ii) (iii) (iv) give advice and make recommendations to the Sacco society with regard to the conduct of its business generally; issue directions regarding measures to be taken to improve the management or business methods of the society or to secure or improve compliance with the requirements of this Act, any regulations made thereunder or any other written law or regulations; in any case to which paragraph applies, issue directions to the Sacco society, officer or other person to cease such practice; appoint a person, suitably qualified and competent in the opinion of the Authority, to advise and assist the Sacco society generally or for the purposes of implementing any directions under subparagraphs (ii) and (iii). (3) The advice of a person appointed under subsection 1(iv) shall have the same force and effect as a direction made under subsection 1(ii) and (iii) and shall be deemed to be a direction of the Authority under this section. (4) The Authority shall, before issuing a direction under subsection (1), serve upon the Sacco society, officer or other person, a notice of such intent specifying the reasons therefor and requiring the Sacco society, officer or other persons, within such period as may be specified in the notice, to show cause why such direction should not be issued. (5) A Sacco society which receives a direction under this section shall comply with the direction within such period as may be specified in the direction and, if so required, shall produce evidence that it has done so. (6) The Authority may issue directions to a Sacco society generally, and where appropriate provide exceptions to those directions to be detailed at time of issuance for the better carrying out of its functions under this Act and in particular, with respect to the prudential standards to be adhered to by a Sacco society in the conduct of its business in Kenya; and regulations to be adhered to by Sacco societies in order to maintain a stable and efficient deposit-taking Sacco movement and financial system. S1-25 [Issue 1]

26 CAP. 490B [Rev. 2012] (7) A person who fails to comply with any direction under this section commits an offence and shall, in addition to the penalty prescribed under this Act, be liable to such additional penalty as may be prescribed for each day or part thereof during which the offence continues. (8) The Authority may impose minimum standards on significant members and officers of a Sacco society as prescribed. 51. Supervisory enforcement actions Where the Authority determines that a Sacco society conducts its business in a manner contrary to the provisions of this Act or of any regulations made thereunder or any other Act or in any manner detrimental to or not in the best interests of its members or members of the public, or a Sacco society is undercapitalized, the Authority shall (d) (e) (f) (g) (h) (i) (j) (k) (l) (m) (n) (o) restrict, suspend or prohibit the payment of dividends by the society; prohibit the conversion of any profits of the society into capital; direct the suspension or removal of any officer involved in such conduct from the service of society; require the society to reconstitute its board of directors; withhold branch or other corporate approval with respect to such society; undertake regular inspections of that society; order the society to submit to the Authority within forty-five days a capital restoration plan to restore the society to capital adequacy as prescribed in section 29 or in the case of issues unrelated to capital such as violations of law, a plan to resolve all deficiencies to the satisfaction of the Authority; prohibit the society from awarding any bonuses, or increments in salary, emoluments and other benefits of all directors and officers of the society; appoint a person suitably qualified and competent in the opinion of the Authority to advise and assist the society in designing and implementing the capital restoration plan or other corrective action plan and the person appointed shall regularly report to the Authority on the progress of the plan; impose restrictions on growth of assets or liabilities of the society as it deems fit; restrict the rate of interest on deposits payable by the society to such rates as the Authority shall determine; order the society to do any or take such other action that the Authority may deem necessary to rectify a capital deficiency or other weakness; impose financial penalties on the society; issue an order placing the society under statutory management; restrict the withdrawal of deposits from the society; [Issue 1] S1-26